"He said he could not go on," staff member Shawn O'Neal wrote two days later in a statement ordered by the Garfield County Sheriff's Office. "I felt that he could make it this short distance and told him he could do it as I have seen many students sore, dehydrated and saying 'can't' do something only to find that they have strength beyond their conceived limits."

O'Neal didn't inform Buschow about his emergency water.

"I wanted him to accomplish getting to the water and the cave for rest," he wrote. "He asked me to go get the water for him. I said I was not going to leave him. ... Shortly thereafter I had a bad feeling and turned to Dave and found no sign of breathing."...

[One of the campers said:] "One thing that [Boulder Outdoor Survival School] offers you is an opportunity to push yourself physically into the red zone. ... He was 200 feet from the water. Is that the point where you give it to him? Or 500 feet?"

The guides were not charged with a crime, and of course, BOSS required the campers to waive any tort liability.

Campers gathered in a circle for the news: "Dave is dead." They had a moment of silence and ate almonds, sesame sticks and energy bars distributed by staff, the first food since sandwiches more than 24 hours earlier.

Your fellow camper died. Here, have some food. Shameful. The article question when, exactly, is the emergency water used? So do I.

I agree with Roger, do you have to artificially tempt death to enjoy life? Its like Richard Pryor saying cocaine was God's way of saying you got too much money. Take the $3000 and use it for something good.

When the guy asked him to go get water the guide said he didn't want to leave him b/c of his condition....Wouldn't that have been the appropriate time to break out that "secret stash"? The guide is guilty of gross negligence!

I've taught martial arts for over thirty years and, just because a student doesn't make a throat block, you don't friggin' collapse his larynx with a punch. You pull the punch in front of his neck and show him how he failed.

Failure is a human condition. Deciding to risk (and cost) someone his life to 'spare' him the feeling of failure is homicide.

vet66 said..."Any activity that denies access to fluids is criminally negligent. High altitudes and desert heat can quickly deplete fluid reserves with quick and deadly consequences."

A fortiori given that virtually by definition, any person taking the course is going to be inexperienced and probably won't recognize the warning signs that mark the boundary between just pushing yourself hard and making a leap to far.

In such a push the boundaries of life situation, the guide, especially at the end, should have been monitoring their health a lot closer and should have given the water once the hallucinations started getting out of hand.

They'll lose in civil court, despite the waiver.

Still, if I had the time and money, sounds like a great course. Not for the death-wish, but the education of survival.

Most people seem to think the guide is guilty of murder, but I think they're missing something -- namely, that the dead man had PAID the guide to NOT give him water.

He signed up for this, believing that he would have no access to water for the entire hike and not knowing that the guides had a secret stash of water. Suppose the guides really HADN'T had emergency water supplies -- would they be guilty of homicide then?

He signed up for this, believing that he would have no access to water for the entire hike and not knowing that the guides had a secret stash of water. Suppose the guides really HADN'T had emergency water supplies -- would they be guilty of homicide then?

Well yes, because it would be grossly negligent (despite the waiver of tort liability) to offer such a course and not have an emergency supply of water (and food) on hand. As it is, the company is at the very least has shredded their tort liability statement because they provided guides who apparently couldn't even recognize the obvious signs of heat stroke. They have a duty to call off the exercise as soon as it becomes threatening to someone's life. This was a 100% avoidable death. When you sign a waiver like this you acknowledge that you might fall off a cliff or suffer a heart attack. You don't sign up to die of thirst and heat stroke. That is why the guides are there--to prevent just this type of thing.

A fortiori given that virtually by definition, any person taking the course is going to be inexperienced and probably won't recognize the warning signs that mark the boundary between just pushing yourself hard and making a leap to far.

Simon, its a good thing you just play a lawyer on the internet. Someone who has gone from heat exhaustion into full blown heat stroke doesn't know where the hell they are. They aren't remotely capable of making rational decisions.

If he had no emergency water supplies, fine. The guide could have walked to the cave (like the other camper said, what is "success" -- making it to within 200, or 500 feet?)

That would not have been fine, it would have been grossly negligent. The guide had the responsibility to monitor to monitor each and every one of the participants for signs of heat exhaustion and dehydration. Heat exhaustion is fine. But once anyone stopped sweating, the survival "course" was over and an actual survival situation began.

I remember way back in boy scouts we watched a film on hypothermia. As it turned out the film makers had started out making a simulated film on hypothermia but actually filmed it in cold conditions. During the filming, one of the actors stopped simulating the effects of hypothermia and actually began to suffer from real symptoms. It was a classic in unintended consequences.

Freder/Mary,I think you think I'm saying something I'm not. What the hell makes you think that I'm making excuses for the tour guide, rather than pointing out that he had an extra duty of care given that he should have been aware of the inexperience of his charges and attentive of the needs to compensate for that?

It seems that every year someone, usually a teenager, dies on one of these idiotic courses. What repeatedly amazes me is how incompetent the so-called instructors are. This case strikes me the same way. It seems the guide was way in over his head.

On the other hand, I really don't give a shit. Some moron signs up for a death course and dies. Too fucking bad.

This would probably make a good question on a bar exam, or perhaps in a torts or crim law exam. I haven't looked up the def'n of criminally negligent homicide in Utah, assuming they have adopted one. But it is usually defined in terms of the defendant's unintentionally causing the death of another, by an act or omission that a reasonable person in the position of the defendant should have known presented a substantial and unjustified risk of death or serious bodily harm. Normally this shows up as a lesser included offense when manslaughter or some lesser degree of murder is the top charge.

In NY, there have been a few publicized cases of welfare moms being convicted of criminally negligent homicide for having starved their infants to death unwittingly, by restricting the infant to breast feeding only. A few years ago, there was a well publicized case in Vail where a skiier (an employee of the resort, if I remember correctly) was convicted of criminally negligent homicide for skiing out of control and colliding with another skier who died from the accident.

In this case, the fellow who died wanted to be pushed past the limits of endurance -- that's what the point of the exercise seems to have been, as was undergoing voluntarily the consequences of exhaustion and dehydration in an unforgiving environment. While the guide was there to help him do it, the "emergency water supply" the guide carried could only have been intended for use in situations normal "exhaustion and dehydration" crossed some line (how the guide was supposed to tell, I have no idea). What it comes down to is whether the guide should reasonably have known, based on what the guide could observe and given the inherently risky and dangerous context of the "survivor" course in which it was all playing out, that this guy was on the verge of death rather than merely being exhausted and dehydrated. The guide was not required to have, or bring to bear, any medical expertise (but if he had any such expertise, that would be taken into account).

So, at what point did the exhaustion and dehydration that was an (intended) part of the "survivor" course morph into a "substantial and unjustified risk," and how would a reasonable observer in the position of the guide know when that point had been reached? That's a judgment call, and people will differ. Assuming that Utah permits prosecutions for criminally negligent homicide, I don't think it would have been any great stretch for a prosecutor to have brought charges here. But I can certainly understand why the prosecutor would decline to do so.

Doesn't society have a responsiblity to itself? Being able to waive liability for grave bodily harm or death puts that liability onto society as a whole. It's a liability we can't ignore unless we are willing to watch people dying in the street. In general, to waive legal rights is to deny the fundamental principles that the law is based on. This both raises the law above principles of justice and right and also opens a loophole to allow people to behave without regard for the law. If I waive my right to trial and appeal and accept execution (or do it myself) does that make it ethically and morally right to commit mass murder? These types of waivers cannot be allowed if we want to claim that our society holds life to be the most sacred fundamental right.

I'm completely unqualified to offer an opinion on the guilt of a crime in this case but I won't hesitate to suggest to the Boulder Outdoor Survival School that they change their motto, simply as a matter of truth in advertising, from "Know more, carry less" to "No more careless."

So, at what point did the exhaustion and dehydration that was an (intended) part of the "survivor" course morph into a "substantial and unjustified risk," and how would a reasonable observer in the position of the guide know when that point had been reached?

Any fairly competent Boy Scout who has earned his First Aid Merit Badge learns to recognize the symptoms of heat stress, exhaustion, and stroke (and the converse at the other end of the temperature scale, frost bite and hypothermia). It is a pretty clear progression and recognizing the symptoms is far from brain surgery. For a guide in a survival course in the high country, this should have been his primary concern should have been second nature. That he did not recognize the obvious symptoms of heat stroke (which is fatal if not treated immediately) and immediately stop the course is criminally negligent considering his supposed expertise.

No Simon, you clearly stated that the client was still capable of rational thought and the guide should have overruled him. I pointed out that this is a completely silly argument. The victim was way past the point of being able to decide what was necessary for his own survival, whether or not he was experienced.

Freder and others offer their opinion that the guide's conduct was "obviously" a case of criminally negligent homicide, a view supposedly supported by what any Boy Scout should have known. Perhaps. But for all of those who are so certain of their opinions, it might be useful to bear in mind that a prosecutor has declined to bring charges. In my experience, that's not a result of any reluctance to file criminal charges where appropriate -- that's what prosecutors do, after all -- but instead reflects a judgment that the facts don't warrant any such action here. Prosecutors are as fallible as the rest of us, but it's quite rare to find one who doesn't take his responsibilities very seriously (Nifong really is the exception proving the rule). I wouldn't be so fast to second-guess a judgment not to prosecute, or to assume that one's say-so about what is "obvious" necessarily has any connection to reality.

I wonder if those liability waivers will hold up if his family pursues a claim. This seems to be a situation involving something more than ordinary negligence---and I imagine public policy in his state would treat a release from liability as ineffective in a situation involving recklessness verging on intentional conduct. And the man was clearly acting on behal of the school....

The ADULT signed a waiver for the express purpose of being pushed past the limits of his endurance. Anyone stupid enough to find that entertaining has no recourse to the slightly less stupid company that provided the service.

Or the fool hardy guide who took a relatively low paying job wherein his main task was to push people to the edge of their physical endurance and then discern whether it was life threatening or not. What is so frightening is that when applying for the position, he didn't see that and run. I wonder now that it's happened, whether he intends to remain employed there; the lack of internalization of our society is beyond the pale.

Why are stupid adults all voluntarily doing stupid things necessarily culpable for each other? Why must lawyers now be involved? The participants are all just stupid. Why can't that just be the beginning and the end of the story?

I've often said that if Macchu Picchu were in this country, no one would be allowed to visit. The liability alone would keep it closed. How sad. How truly sad.

Any fairly competent Boy Scout who has earned his First Aid Merit Badge...

Freder, you're proscribing specific knowledge onto the defendant here. Maybe I missed it, but I don't see any information in the article about what level of knowledge or training the guide actually has.

(We could argue as to whether or not he would be properly trained without this particular knowledge...but that's an argument against the people who hired him, and not agains the guide.)

With the knowledge of a reasonable person (okay...my own), I don't know just how easy it would be to discern whether or not someone's dehyrdation is potentially fatal.

It's far easier to look at a situation, and find fault with the result than it is to take action without the blessing of hindsight. (The Democratic Party does it all the time.)

I could see taking legal action against the business, or against the doctor who signed off on the man's suitability for the exercise, but not against the guide based on the evidence actually presented in the article.

Freder, I'm with Simon: you are misinterpreting him, rather egregiously.

Simon is saying that inexperienced persons won't recognize the warning signs. Proper warning signs for such things like dehydration, heat exhaustion, and the like come before one loses rationality. This person failed to heed those warnings, perhaps because he didn't know what they were, and therefore ultimately became irrational (before he became dead, that is).

The poor guy paid BIG money so he could safely do something inherently dangerous. It is the same thing you do when you jump out of a plane strapped to an experienced sky-diver, or swim with sharks with experienced divers, or do any potentially dangerous activity with the help and guidance of an expert.

TMink said... I am not sure about his legal culpability, but he murdered that man. Wonder how he sleeps?

Wrong. Unless you are willing to call all coaches and bosses that have someone collapse and die from strenuous activity that 10,000 other people get through "murderers".This apparantly was the 1st death in the BOSS program where people are entering conscious of the risks.

Freder - Well yes, because it would be grossly negligent (despite the waiver of tort liability) to offer such a course and not have an emergency supply of water (and food) on hand. As it is, the company is at the very least has shredded their tort liability statement because they provided guides who apparently couldn't even recognize the obvious signs of heat stroke. They have a duty to call off the exercise as soon as it becomes threatening to someone's life. This was a 100% avoidable death.

Wrong, Freder, you envision a world of 100% safety where Mommy takes care of you and "somebody" has an obligation to protect you so you feel you are free to yammer away on how much you love terrorist's civil liberties.

Hundreds of Americans die in HS or college football practice - a very slight risk given the numbers involved - of dehydration, exhaustion, heart strain. They do knowing that the activity can kill, cause paralysis, has other risks ---They and their parents if they are under 18 sign waivers knowing this. Because it is necessary to push people past limits to develop their endurance and stamina to play the sport. Or certain jobs.

(Or to be a Marine, a Navy SEAL, a Lance Armstrong, a noted female triathlete, a high-act ironworker)

Because most men don't want to be safe with Mommy the rest of their lives but to compete, sometimes at or beyond their limits, and win. Many women, too. I've seen a man die in the military from physical training. I've seen and help recover the effects of a mountainclimber who tested his limits and failed..

We all die. Fortunately enough of us have instincts that go beyond the timid's only desire of maximizing personal safety - enough of humanity exists that wants to do things, even if they are risky.

Joe said... It seems that every year someone, usually a teenager, dies on one of these idiotic courses.

And for every person that dies, there are 5-10,000 others that were pushed beyond their limits that go on the rest of their lives with added confidence, a competitive edge, even convinced it was a lifechanging experience that shaped success later on. And encounter 100's of others that express regret that they were afraid to test themselves similarly. And think of the people who want nothing of life other than safety as comfortable couch potatos, or who are behind bars or in a shitty job because they were people that took to underperforming given the abilities and talents they were too timid to test because of risk..

We all die.

The courses exist because they are far from "idiotic". They are ubiquitous in human cultures. Many are warrior-based when every man had to be toughened and hardened by physical ordeal to better ensure everyone's future survival and advancement. To know the exhileration of victory the great poets spoke of. To know oneself.

cedarford, I'm not sure I agree about the culpability issues in this particular case, but I am definitely with you in general that we as a society seem truly obsessed at times with "preventing" death. That we fail in that endeavor 100% of the time hasn't dissuaded us. Life ought to be about more than prolonging itself.

tmink: I am not sure about his legal culpability, but he murdered that man.

If you're not sure about his legal culpability, then you're not sure he murdered him. We can all agree that he could have prevented his death. And I think there is room for disagreement on whether he should have, though I would argue in the affirmative. But murder is a legal term, and I'm not willing to go as far as to say he did.

The poor guy paid BIG money so he could safely do something inherently dangerous.

The application specifically stated that the hike was not risk-free, so if the guy was looking for "safely doing something inherently dangerous" he must not have read it before he signed. The waiver of liability should have been another hint, for that matter.

Also, do we know if the guides were meant to be caretakers, rather than just... guides? The waiver makes the latter sound like the more likely option. There is a big difference between being obligated to keep a client alive and being obligated to tell a client where he needs to go in order to live.

It is the same thing you do when you jump out of a plane strapped to an experienced sky-diver

But were the guides acting in that sort of role, or just in the role of the pilot who flies you to a good jump spot and tells you the altitude to open your chute at? The former is obviously responsible if you smack into the ground and die, but the latter probably isn't -- the latter would be negligent only if you clearly had no idea what the heck you were doing and he let you jump anyway.

Remember, the dead man wasn't some white collar wanna-be taking a vacation from his insurance job. He was ex-military and experienced with hiking in extreme conditions (the Arctic tundra in Greenland -- also an easy place to die in).

"Also, do we know if the guides were meant to be caretakers, rather than just... guides?"

I don't for certain, but the money makes me think the guy is more than just a guide.

"But were the guides acting in that sort of role, or just in the role of the pilot who flies you to a good jump spot and tells you the altitude to open your chute at?"

If you use this analogy then the piilot dropped the guy into a hurricane. More than that, he forced the guy to jump. The guy didn't WANT to jump, he changed his mind at the last minute, but he was pushed. (Guess that would be analogous to asking for water.)

But the hikers didn't know about the emergency water supply, or, apparently, expect the guide to have such a supply. That is inconsistent with the belief that they saw the guide as a caretaker.

If you use this analogy then the piilot dropped the guy into a hurricane.

After being specifically paid to drop him into a hurricane. That's not criminal negligence -- assisted suicide, maybe. :)

The guy didn't WANT to jump, he changed his mind at the last minute, but he was pushed.

Nah, the "jump" was setting off on the hike. Also, both morality and the law draw a distinction between acting to kill someone (e.g. pushing them out of a plane) and letting them die by NOT acting to save them (e.g. not giving water to a man dying of thirst).

They didn't kidnap the man and dump him in a blazing desert without water. He did that to himself, voluntarily. All they did was make a bad judgment call about whether he needed to be rescued or not.

Hundreds of Americans die in HS or college football practice - a very slight risk given the numbers involved - of dehydration, exhaustion, heart strain. They do knowing that the activity can kill, cause paralysis, has other risks ---They and their parents if they are under 18 sign waivers knowing this.

Well no Cedarford, as I pointed out above there is a difference between unanticipated and unavoidable accidents and a progressive, preventable physical deterioration that people like coaches and guides have the responsibility to be trained to recognize and prevent. Heat stroke is an example.

Simon is saying that inexperienced persons won't recognize the warning signs. Proper warning signs for such things like dehydration, heat exhaustion, and the like come before one loses rationality.

Well, Simon shouldn't be talking about something he knows nothing about. Even the most experienced person doesn't always recognize the symptoms in themself. That is why in survival situations (and even industrial situations where people work in high heat or cold/wet situations), everyone should be watching their companions for signs of heat stress or hypothermia. For those suffering from heat stress (or hypothermia), delirium and irrationality can creep up and they are unable to recognize the symptoms.

Again, this is something 12 year old boy scouts learn (and contrary to what Cedarford would have you believe, the military also knows this and people have been court martialed for not paying attention to it in training exercises). It ain't rocket science. And anyone who is taking $3,000 to teach people survival skills should have all these things down pat.

Like I said at the beginning, I have taught dangerous (with live weapons) martial arts for decades.

Just because someone knows that and signs a waiver not holding me culpable for accidental damage or death does not give me the right to follow through with violence if he/she misses a block. That is not accidental. Especially if said student falls to the ground, throws up their hands and cries "I quit!"

That is essentially what happened when the man yielded his goal. The guide had no moral or legal right to override the man's wish to give up the fight.

The man may have been nuts to try this venture (as I'm sure people think I am for sparring with live metal spears, etc), but just before he friggin' died, he realized his err and canceled out. The guide 'knew better' and caused his death.

By the way, the guide didn't spare him the emotions of failing or give him the rewards of overcomming difficulty now, did he?

Well, murder is also a term of sin. The original text of the commandment is closer to "Thou shalt not murder" than to "Thou shalt not kill." But, I was NOT looking at it from a legal standpoint, so your point has merit.

Cedarfird said "Wrong. Unless you are willing to call all coaches and bosses that have someone collapse and die from strenuous activity that 10,000 other people get through "murderers"."

Well, I am certainly not willing to lable them murderers, but I stick by my point. I think that the guide has more of a fiduciary responsibility than a coach or boss. It is more like a personal trainer who says "One more" while the guy paying him is choking from the weight of the bar pressing on his neck.

It is probably not criminal. Civil liability is entirely appropriate if the state determines---as most states do---that it is against public policy to allow a party to be released from the consequences of its own intentional or reckless conduct. Some won't apply such waivers if there is gross negligence.

Stopping people from deliberately withholding water from a severely dehydrated client doesn't exactly strike me as an instance of the nanny state run mad...but obviously this is a point on which reasonable persons may differ.

Regardless of what you call it, there would appear to be a direct and causal link between this guide's (or whatever he calls himself) conduct and the death of the "school's" client. I hope that his family are permitted to hold the school accountable. I'm not exactly pro-litigation as a rule but this is a very unusual case.

In the UK there would be clear culpability under the Mental Capacity Act 2005, which makes it a criminal offence to 'ill-treat or wilfully neglect' someone who does not have mental capacity to make a decision or take an action in their own best interest.

In such circumstances of incapacity - however caused and whether permanent or temporary - someone with a lawful 'duty of care' - as the guide clearly had - has a duty to act in that person's best interest on their behalf.

It might have been good for Dave Buschow to have made it through the course, but it was not in his best interest to die in the attempt.

Based on the clinical signs and symptoms available the guide should have known that Dave was suffering from life-threatening dehydration and had the means to act in his best interest to offer him water.

Should indeed have been offering regulated sips of water not letting him guzzle from a cave spring.

Bang to rights over here. Mercifully we are not so stupid as a nation to buy into such lunacy in the first place.

This thread is probably over but I would point out that for elite schools in the Army, such as Ranger School, where trainees undergo 9 weeks of very rigorous training--incidents where ranger candidates die are always the subject of investigation and court martial. Several lane graders and commanders have been court martialled for fatalities among ranger candidates.

I recognize that these two situations arent the same, but it sounds like to me, the BOSS program lacks qualified guides.

Roger - This thread is probably over but I would point out that for elite schools in the Army, such as Ranger School, where trainees undergo 9 weeks of very rigorous training--incidents where ranger candidates die are always the subject of investigation and court martial. Several lane graders and commanders have been court martialled for fatalities among ranger candidates.

Don't confuse court martial with guilt. Many times the instructor is found totally innocent, other times, training deficiencies are found or some medical condition that went undetected. The military uses trials if there is any question in the investigation mainly as learning opportunities - unless gross negligence is found.

If you are running your men on a forced march with no rest or war games and a penalty of washout from Ranger school if they drop out, the men will be pushed to limits. If one man dies when 20,000 in the past have suceeded, it is no big deal if the trained men are made set to excel in combat and take far fewer casualties while being better able to do their mission than all but elite troops in other nations.

US military trains hard. Even in peacetime, hundreds a year die in accidents, accidents brought on by being at physical limits, or purely from physical strain..More soldiers died annually under Carter than under Bush II - a little known fact to Lefties setting up their little faux cemeteries of "dead troop heroes" to blubber to the media cameras, over..

More soldiers died annually under Carter than under Bush II - a little known fact to Lefties setting up their little faux cemeteries of "dead troop heroes" to blubber to the media cameras, over..

Bullshit Cedarford. More troops died from all causes (from a much larger military) under Carter than were dying in Iraq. Of course soldiers are still dying outside of Iraq and Afghanistan from the very same things they died of before the war started. And considering we are pretty regularly approaching 100 dead a month in Iraq, even this bullshit comparison probably won't be valid much longer.

And the number one killer of military personnel under Carter was the same thing it is today outside of the combat zones and the same thing it is for all healthy young people--traffic accidents. The reason the military was able to reduce the rate of deaths among its members was its very concerted effort to reduce drunk driving (it is a now career ender for officers and will cost an enlisted personnel at least a grade or two). Even deaths during training (which are a very small proportion of the 600 or so non-combat deaths annually of military personnel) are mostly caused by inattention around equipment (e.g., being crushed by moving equipment or run over by vehicles) rather than soldiers testing their physical limits or even being accidentally shot or blown up.

Cedarford: As it turns out I am a 1967 west point grad, ranger qualified, have won 2 silver stars and a purple heart in combat in viet nam and a 25 year long army career up thru my last assignment with the Joint Chiefs of Staff. I really do understand the army!

Ranger school teaches ranger skills; but its other purpose is to teach leadership and to push men to their limits; the rule basically was that men can often do more than they think they can; but at no time is a commander ever supposed to forget the other side of the leadership equation: balancing mission accomplishment with the welfare of the soldiers entrusted to you. It is most definitely not an all or nothing proposition.

Tort liability can't be completely waived. A plaintiff can't contract away his right to sue for an intentional tort, e.g., "It's OK to hit me with a 2-by-4." I haven't researched the issue, but I'd bet money that in most if not all jurisdictions, you can't waive tort liability for negligence, when that negligence is gross or egregious.

In my comment immediately preceding this one (boy, do I know how to kill a thread or what?) I pretty much said that the idea that a plaintiff could contractually waive a claim of gross negligence was a non-starter.

Now, I don't think lawyers are writing briefs based upon that comment, and this is anonymous - so I don't have to worry about reputation - but I guess I have some obligation to correct myself when it looks like I got it wrong.

The Restatement of Torts (Second), relied on in a lot of jurisdictions, says, in § 496B:

"A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy."

"Reckless" would, I think, include grossly negligent conduct.

Comment d of that section goes on: "[i]n order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. Again, where the agreement is drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant."

So there are significant hurdles related to public policy, and the agreement also will be strictly construed against the defendant, but if the controlling jurisdiction here follows the Restatement, then the plaintiff's waiver of tort liability is not a non-starter.